Muhammad Khalid Mehmood Khan, J: Through this

single judgment, I propose to decide Writ Petitions

No.5906/2011, No.6665/2011, No.9608/2011,

No.15339/2011, No.15483/2011, No.17051/2011,

No.17052/2011, No.17157/2011, No.17158/2011,

No.16721/2011, No.17156/2011, C.M.No.2281/2011,

C.M.No.2471/2011, C.M.No.2501/2011, C.M.No.2568/

2011, C.M.No.2583/2011 and C.M.No.2828/2011.

2. In the main petition (W.P.No.5906/2011), number

of applicants have filed application under Order I rule 10

Code of Civil Procedure, 1908 which are allowed and

they are made party/petitioners in the writ petition and as

such all the applicants under Order 1 rule 10 CPC will be

treated petitioners for the purpose of this judgment.

W.P.No.5906/2011 Ali Akbar, etc. v. Govt. of the Punjab, etc.

2

3. Briefly stated the facts of case are, petitioners were

earlier appointed on contract basis as Additional

Prosecutor General, Deputy Prosecutor General, District

Public Prosecutors, Deputy District Public Prosecutors

and Assistant District Public Prosecutors under the

Recruitment Policy/Contract Employment Policy 2004

(Punjab). Their appointments were challenged and

ultimately the matter went up to the Hon’ble Supreme

Court of Pakistan and the Hon’ble Supreme Court of

Pakistan vide judgment Abid Iqbal Hafiz and others v.

Secretary, Public Prosecution Department, Government

of the Punjab, Lahore and others (PLD 2010 SC 841)

finally decided the matter in the following terms:

“21. The position crystallizing from the above discussion

may summarized as under:--

(1) The persons whose cases were not competently

scrutinized/ examined, they shall appear before the

Committee for the validation of their

temporary/contract appointment subject to the

language employed in the appointment letter;

(2) If the petitioners opted to appear before the

Committee which shall now be constituted to review

the temporary short term arrangements as per their

contract appointment letters, the Committee would

dispose of their cases expeditiously, preferably

within a period of four weeks from the receipt of

copy of this order;

(3) The term of the temporary/contract appointment

would not exceed a period of one year;

(4) If the petitioners or others who had appeared in the

interview before the Committee, or anyone else who

W.P.No.5906/2011 Ali Akbar, etc. v. Govt. of the Punjab, etc.

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wanted induction in terms of this Court’s order

dated 8.1.2010 passed in the aforesaid Civil

Petitions, they would be at liberty to appear in the

examination to be conducted by the Commission for

regular appointment; and

(5) The prosecution Department is directed to send

requisitions to the Commission for advertisement of

the posts of initial recruitment in accordance with

law and the rules.”

4. The present petitioners were thus re-interviewed

and appointed under the dictum laid down by the Hon’ble

Supreme Court of Pakistan, their case is covered under

the following guideline of the Hon’ble Supreme Court of

Pakistan;

“If the petitioners opted to appear before the Committee

which shall now be constituted to review temporary short

term arrangements as per their contract appointment

letters, the Committee would dispose of their cases

expeditiously, preferably within a period of four weeks

from the receipt of copy of the order.”

5. That in pursuance of interview by Departmental

Committee, they were issued appointment letters on

5.7.2010 in the following terms:

“ORDER

No.SO(A)/PPD/9-228/2010. In pursuance to the directions

of Supreme Court of Pakistan, Public Prosecution

Department conducted interviews of those Assistant

District Public Prosecutors (BS-17) whose cases were not

competently scrutinized at the time of appointment. As per

recommendations of the committee, following Assistant

District Public prosecutors (BS-17) have been declared

successful and offered one year contract employment w.e.f.

05.07.2010 to 04.07.2011 including one month mandatory

W.P.No.5906/2011 Ali Akbar, etc. v. Govt. of the Punjab, etc.

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notice before termination of contract as provided in the

“contract Appointment Policy 2004” or till arrival of

selectees of Punjab Public Service Commission whichever

is earlier.

……………………………………………

……………………………………………

……………………………………………

All ADPPs who are working at place of their domicile and

offered one year contract shall convey two stations, other

than their domicile place, within 3 days for their posting

and transferring which the department will issue

appropriate orders.”

6. During the continuous of petitioners contract of

service, the respondent/Government of the Punjab,

Service General Administration Department (Regulations

Wing) on 10.11.2010 issued a notification with the

subject “appointment of contractee in BS-16 and above

on regular basis” under the conditions which are

reproduced as under:

“(a) The contract employees appointed as per service

rules on the recommendations of the Punjab Public

Service Commission are to be considered for appointment

on regular basis. For this purpose, concerned

Administrative Departments shall submit cases of

employees for their appointment on regular basis to the

Chief Minster, Punjab through the Regulations Wing

S&GAD and Finance Department. While submitting such

cases to the Chief Minister it may be ensured that the

contract appointments were made in accordance with the

provisions of the service rules regarding age limit

qualifications and experience wherever prescribed. The

appointments on regular basis may be recommended on

case to case basis keeping in view the performance of the

individual employee.

W.P.No.5906/2011 Ali Akbar, etc. v. Govt. of the Punjab, etc.

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(b) The contract employees, who were appointed as per

eligibility criteria and on the recommendations of the

Punjab Public Service Commission are to be considered

for appointment on regular basis, subject to the condition

that the concerned Administrative Department shall first

get the service rules of the posts framed at the earliest and

then submit the cases to the Chief Minister of the contract

employees who fulfill the conditions of service rules

regarding age limit, qualification and experience wherever

prescribed. Summaries shall be submitted to the Chief

Minister, Punjab through the Regulations Wing, S&GAD

and Finance Department. The appointments on regular

basis may be recommended keeping in view performance of

the contractees falling I this category.

(c) The cases of contract employees in BS-16 and

above, who were appointed on the recommendations of the

respective selection committees as per provisions of the

service rules may be referred to the Punjab Public Service

Commission for determining their suitability for

appointment on regular basis against the posts held by the

contract employees.

(d) The contract employees, who were appointed on the

recommendations of Departmental Selection Committee

and in accordance with the eligibility criteria, duly

approved by the Chief Minister, Punjab, may be referred to

the Punjab Public Service Commission for determining

their suitability for appointment on regular basis against

the posts held by the contract employees, after getting the

service rules framed with the approval of the Chief

Minister.

3. Further necessary action may be taken

accordingly.”

7. The petitioners then filed representation before

respondent No.1 requesting that their cases may be

referred to Punjab Public Service Commission(PPSC) in

terms of judgment of Hon’ble Supreme Court of

W.P.No.5906/2011 Ali Akbar, etc. v. Govt. of the Punjab, etc.

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Pakistan. Their representation was declined; the

petitioner has assailed the act of respondent Government

for not referring their cases to Punjab Public Service

Commission. The petitioners have prayed as under;

“In the light of above submissions it is most graciously

prayed that the rejection of the representations of the

petitioner by respondent No.2 may kindly be declared

to be illegal, tainted with mala fide, against the law,

void ab-initio, unlawful and having been passed

without lawful authority.

It is also prayed that petitioners may be allowed to

utilize the benefits of the notification dated 10.11.2010

issued by the respondent No.3 and the respondent No.2

may kindly be directed to refer the cases of the

petitioners to the Punjab Public Service Commission

for the determination of suitability and fitness for

appointment on regular basis against the posts

occupied/held by the petitioners.”

8. Respondent No.1 filed written statement and

asserted that Notification dated 10.11.2010 of S&GAD is

not applicable to contract appointment of prosecutors as

they are governed by the provisions of the Punjab

Criminal Prosecution Service (Constitution, Functions &

Powers) Act, 2006; the appointment of petitioners was

time bound and made on specific directions of the

Hon’ble Supreme Court of Pakistan only for one year or

till the arrival of selectees of Punjab Public Service

Commission whichever is earlier. It is also asserted that

W.P.No.5906/2011 Ali Akbar, etc. v. Govt. of the Punjab, etc.

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when the issue for regularization of contract

appointments in BS-16 and above was considered, the

contract appointment of prosecutors in the Public

Prosecution Department was never considered as the

public prosecution department has its own statutory law

which already stipulates the appointment of prosecutors

on the recommendations of PPSC. It is submitted that

Respondent No.1 is not bound to refer the case of

petitioners to PPSC.

9. Respondent No.3 has also filed written statement

and raised the same objections which were taken by

respondent No.1.

10. Mr. Farooq Amjad Meer, Advocate/learned

counsel for petitioners submits that it is not denied that

petitioners contract was for one year and the

departmental committee constituted under the directions

of the Hon’ble Supreme Court of Pakistan appointed

them after completing all process as provided under the

respective law and policy, the petitioners are thus the

contract employees of respondent No.1. Notification

dated 10.11.2010 is applicable in the petitioners case as

well. He submits that Hon’ble Supreme Court of

Pakistan has not directed respondent to offer employment

to petitioners out of way and without fulfilling the criteria

W.P.No.5906/2011 Ali Akbar, etc. v. Govt. of the Punjab, etc.

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required for the posts held by them. He submits that

petitioners could not be discriminated with the other

contract employees of Government of Punjab. Learned

counsel submits that petitioners only grievance is that in

terms of notification dated 10.11.2010 their case be

referred to PPSC, they are not asking any special favour,

they have to appear before the PPSC in case their case

are referred by respondent No.1 and PPSC will be the

sole judge to determine their eligibility for the respective

post.

11. Mr. Muhamamd Siraj-ul-Islam Khan, Learned

Additional Advocate General, Punjab submits that

petitioners case is time bound contract which will expire

after the completion of one year period or on availability

of selectees of PPSC whichever is earlier. The circular

referred to by petitioners is not applicable on the

petitioners case as they were appointed on the directions

of the Hon’ble Supreme Court of Pakistan and as such

the respondents are not bound to refer the petitioners case

to PPSC; the petitioners if wanted to continue with the

service they have to prove the eligibility criteria of PPSC

and after determining the suitability for appointment of

petitioners on regular basis by the PPSC they will be

entitled to be appointed. Further submits that petitioners

W.P.No.5906/2011 Ali Akbar, etc. v. Govt. of the Punjab, etc.

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case has finally been decided by the Hon’ble Supreme

Court of Pakistan and as such they could not be treated

the contract employees of respondent No.1; the

respondent No.1 has to recruit the employees under

Section 8 (3)(4) of Punjab Criminal Prosecution Service

(Conditions of Service) Rules 2007.

12. Learned counsel appearing on behalf of respondent

No.1 and 3 have adopted the argument of learned

Additional Advocate General, Punjab.

13. Arguments heard, record perused.

14. The earlier appointments of petitioner along with

others were scrutinized by the Hon’ble Full Bench of this

Court which was assailed before the Hon’ble Supreme

court of Pakistan and finally the Hon’ble Supreme Court

of Pakistan held in the following terms:

“21. The position crystallizing from the above discussion

may summarized as under:

(1) The persons whose cases were not competently

scrutinized/ examined, they shall appear before

the Committee for the validation of their

temporary/contract appointment subject to the

language employed in the appointment letter;

(2) If the petitioners opted to appear before the

Committee which shall now be constituted to

review the temporary short term arrangements

as per their contract appointment letters, the

Committee would dispose of their cases

expeditiously, preferably within a period of four

weeks from the receipt of copy of this order;

W.P.No.5906/2011 Ali Akbar, etc. v. Govt. of the Punjab, etc.

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(3) The term of the temporary/contract appointment

would not exceed a period of one year;

(4) If the petitioners or others who had appeared in

the interview before the Committee, or anyone

else who wanted induction in terms of this

Court’s order dated 8.1.2010 passed in the

aforesaid Civil Petitions, they would be at

liberty to appear in the examination to be

conducted by the Commission for regular

appointment; and

(5) The prosecution Department is directed to send

requisitions to the Commission for

advertisement of the posts of initial recruitment

in accordance with law and the rules.”

15. The respondent No.1 then constituted a

departmental committee in terms of judgment of the

Hon’ble Supreme Court of Pakistan and after

interviewing the petitioners as detailed in letter dated

5.7.2010 they were offered one year contract

employment commencing from 5.7.2010 to 4.7.2011 in

terms of Contract Appointment Policy, 2004 or till arrival

of selectees of PPSC whichever is earlier. The contract

offered to petitioners shows that in pursuance of direction

of the Hon’ble Supreme Court of Pakistan, Public

Prosecution Department constituted Committee,

conducted interviews of the petitioners, recommended

them for offering a contract employment of one year with

the specific condition that the maximum period of their

contract will be one year along with one month

W.P.No.5906/2011 Ali Akbar, etc. v. Govt. of the Punjab, etc.

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mandatory notice before termination of contract or till

arrival of selectees of PPSC whichever is earlier. This

shows that petitioners were interviewed and found

suitable for offering the contract of service but the

maximum validity of their contract was fixed one year

or till arrival of selectees of PPSC whichever is earlier.

16. Admittedly, before the arrival of selectees or the

expiry of contractual period of petitioners contract, the

Government of the Punjab issued a notification

No.DS(O&M)5-3/2004/contract (MF) Government of

Punjab Services and General Administration Department

(Regulation Wing). The petitioners claim refuge under

clause (c) and (d) of the said notification which are read

as under:

(c) The cases of contract employees in BS-16 and

above, who were appointed on the recommendations of the

respective selection committees as per provisions of the

service rules may be referred to the Punjab Public Service

Commission for determining their suitability for

appointment on regular basis against the posts held by the

contract employees.

(d) The contract employees, who were appointed on the

recommendations of Departmental Selection Committee

and in accordance with the eligibility criteria, duly

approved by the Chief Minister, Punjab, may be referred to

the Punjab Public Service Commission for determining

their suitability for appointment on regular basis against

the posts held by the contract employees, after getting the

service rules framed with the approval of the Chief

Minister.

W.P.No.5906/2011 Ali Akbar, etc. v. Govt. of the Punjab, etc.

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17. Clause (c) of the said notification provides that

employees in BS-16 and above appointed on the

recommendations of respective selection committees as

per provisions of the Service Rules may be referred to

PPSC for determining their suitability for appointment

for regular basis against the post held by the contract

employees.

18. Clause (d) of the said notification provides that

those contract employees who were appointed on

recommendations of departmental selection committee

and in accordance with the eligibility criteria duly

approved by the Chief Minister of Punjab may be

referred to PPSC for determining their suitability for

appointment on regular basis against the post held by

contract employees after getting service rules framed

with the approval of Chief Minister.

19. The conjunctive study of above two clauses of the

notification shows that two types of contract employees

are covered under the said two clauses; one is that whose

contract of employment is based on the recommendations

of selection committees of respective hiring department

and the second category is of those employees whose

contracts were recommended by the departmental

committee in accordance with the eligibility criteria

W.P.No.5906/2011 Ali Akbar, etc. v. Govt. of the Punjab, etc.

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approved by the Chief Minister; meaning thereby the

Chief Minister has approved an eligibility criteria for

posts for different departments, contractual employees

falling in both the above categories qualify for referring

their case to PPSC, the reason for referring their cases is

the determination of their suitability for regularization of

the post held by them. The intention of issuer of

Notification thus is that referring the case to PPSC will

not enable the referred employee to be regularized on

post held on contract, but the referred employee has to

prove himself eligible and suitable as per criteria fixed by

the PPSC.

20. In the judgment referred to above, Hon’ble

Supreme Court of Pakistan has held that all appointments

in the Government departments should be transparent,

fair, just and on merits. The petitioners before the

Hon’ble Court were appointed on contract basis, but their

contracts were found in violation of law hence they were

given an option to appear before a committee, and it was

the committee who after scrutinizing their eligibility

offered them contract of one year conditional

appointment, not extendable further.

The petitioners case is covered under the guideline

No.2 of the judgment of Hon’ble Supreme Court of

W.P.No.5906/2011 Ali Akbar, etc. v. Govt. of the Punjab, etc.

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Pakistan. Admittedly a committee was constituted by the

respondent No.1 who interviewed the petitioners and

offered them a contract of one year as referred to above.

The petitioners are now claiming that they are the

contract employees appointed by the committee after

evaluating their suitability and as such the respondent

Government is bound to refer their case to PPSC under

Notification dated 10.11.2010.

21. It is an admitted fact that petitioners are the

contract employees of respondent No.1 and are rendering

services under the Punjab Criminal Prosecution Service

(Constitution, Functions and Powers) Act 2006 and as

such their contract of employment is at par with the other

contract employees and they could not be discriminated

on the ground that they were appointed on the direction

of the Hon’ble Supreme Court of Pakistan, the Hon’ble

Supreme Court of Pakistan has directed the respondents

for constituting a committee for reviewing temporary

short term arrangement as per their contract appointment

letter and it was not the direction of Hon’ble Supreme

Court of Pakistan that committee will be bound to offer

them contract of service, the committee was at liberty to

offer fresh contract of service or not. The committee

constituted by the respondent interviewed the petitioners

W.P.No.5906/2011 Ali Akbar, etc. v. Govt. of the Punjab, etc.

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and found that petitioners qualify to be appointed as

contract employee. It is not the case of respondent that

the petitioners were not interviewed nor the committee

recommended their case for offering the contract of one

year, the respondent case is that the petitioners are

employees of special contract and their contract

employment is different from the contract of other

employees of Punjab Government. It is not understand-

able how the petitioners could be separated from the

other contract employees of Government of the Punjab,

especially when Hon’ble Supreme Court of Pakistan

never directed the respondents to offer the contract to

applicants who opted to appear before it, the committee

was fully competent to refuse to offer the contract to

applicants if they deem fit. Admittedly, seats are

available. The petitioners are performing their duties as

per satisfaction of employer; there is no allegation of

incompetency or irregularity against the petitioners.

22. Now the question arose, what will be the effect of

referring the case of petitioners to PPSC by respondents.

23. The Notification dated 10.11.2010 supra

specifically provides that the PPSC will be the sole

authority to determine suitability and eligibility of

candidate for appointment on regular basis against the

W.P.No.5906/2011 Ali Akbar, etc. v. Govt. of the Punjab, etc.

16

post held on contract. The referring of petitioners case to

PPSC does not mean that PPSC is duty bound to select

them. The PPSC will examine the case of petitioners on

the basis of suitability criteria laid down for the said post.

The petitioners are not requesting for recommending

their case for regularization of their post but their case is

only that they are the contract employees; their contract

of employment has not expired nor the selectees of PPSC

are made available; hence they be referred to the PPSC

under the Notification supra like other contract

employees of Government of Punjab and in case they

fulfill the criteria laid down by the PPSC for the post held

by them, the PPSC may select them or may reject them.

If PPSC select them then they will be deemed to be

regularized like other employees.

24. The Notification supra does not give any

concession to the contract employees from the suitability

criteria fixed by the PPSC for the post held. All the

employees whose case will be referred under the said

notification have to fulfill the requirements of the post

held by them.

25. The petitioners are holding the posts on contract

and in case they passed the suitability and eligibility

W.P.No.5906/2011 Ali Akbar, etc. v. Govt. of the Punjab, etc.

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criteria of PPSC, they will be regularized and the

respondents have not to create further posts for them.

26. There is a difference between the reference and

recommendation. The recommendation may create some

right in favour of petitioners but reference does not create

any right.

27. The petitioners are willing and ready to fulfill all

requirements of PPSC for the post held by them and as

such in my humble opinion the petitioners case falls

within the Notification supra. The petitioners have

acquired knowledge and experience about the post held

by them and as such they may produce better result than

new appointees, if selected by the PPSC.

28. The arguments of learned Additional Advocate

General, Punjab that it is a matter of past and close

transaction in terms of judgment of the Hon’ble Supreme

Court of Pakistan is not tenable. The Hon’ble Supreme

Court of Pakistan scrutinized all appointments on

contract basis prior to the judgment and has not approved

the earlier contract of employment in exclusion of PPSC,

the Hon’ble Supreme Court of Pakistan has finally

decided the matter and the respondents constituted fully

empowered departmental committee who interviewed the

W.P.No.5906/2011 Ali Akbar, etc. v. Govt. of the Punjab, etc.

18

petitioners and on the departmental committee’s

recommendations, petitioners were offered contract of

service. The petitioners under the existing contract could

not claim any independent right for waiver of any

condition of suitability and eligibility criteria laid down

by the PPSC for the post held by them. In case the

respondents refers the petitioners case to PPSC, the PPSC

will examine their case strictly as per suitability and

eligibility criteria applicable to the respective posts held

by the petitioners.

29. There is another aspect of the case that the

petitioners whose contract of service has expired, they

are not debarred to appear before the PPSC, if post of

ADPPs/DDPPs is advertised and in case they

successfully pass the suitability and eligibility criteria for

the post, the PPSC may recommend them for the post

advertised and as such the petitioners being contract

employees are not asking any extra ordinary relief; they

will appear before the PPSC and will pass the required

criteria for the post held by them.

30. The present situation was not prevailing at the time

when the Hon’ble Supreme Court of Pakistan decided the

issue qua the earlier contract of employment of

petitioners as these appointments were in exclusion of

W.P.No.5906/2011 Ali Akbar, etc. v. Govt. of the Punjab, etc.

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PPSC, the Hon’ble Supreme Court of Pakistan has finally

directed that all appointments in government service

should be transparent, fair, just and on merits and the sole

judge to decide the merit is PPSC.

31. In view of the above, this petition is allowed to the

extent that the respondent No.1 will refer the petitioners

cases to PPSC for scrutinizing their suitability and

eligibility in accordance with law on the touchstone of

merits and transparency as held by the Hon’ble Supreme

Court of Pakistan.

(Muhammad Khalid Mehmood Khan)

Judge

*KMSubhani*

Announced in open Court on 05.08.2011.

(Muhammad Khalid Mehmood Khan)

Judge

*KMSubhani*

Approved for reporting.